In previous articles in the Attorney 101 series, we’ve explored Florida’s complex and oft-misunderstood laws surrounding various accidents ranging from motor vehicle and motorcycle accidents to medical malpractice and work-related injuries. The newest installment of the Attorney 101 blog series details another important topic: the statute of limitations. While we’ve discussed this topic in the context of specific accidents throughout 2018, we’ve yet to place emphasis on the statute of limitations in an article of its own. Thusly, the Law Resource Blog will now offer our readers an in-depth look specifically at the statute of limitations as it pertains to the practice of Personal Injury law.
Under the law, the “Statute of Limitations” exists for any lawsuit that arises from an accident or permanently injurious behavior due to the negligence of another. However, there are limits and stipulations placed upon what injuries this statute is granted; the injuries must be permanent, with very little in the way of a “full recovery” prognosis. And, in our Car Accident Law series we established the following legal determination to be true:
“[…]Florida’s specific laws mandate that a driver who sustained permanent injuries [known under the law as “Injury to Person” §95.11(3)(o)] as the result of a car accident has four years (Florida Statutes Title 8, Ch. 95, Sec 95.11) from the date of the accident to bring litigation. After that, no matter how satisfactory the claim may be to a judge, it will no longer be allowed to be heard in court as the Statute of Limitations has run its course.”
When the clock starts ticking
The timeframe for filing a lawsuit varies by state, but in the state of Florida victims or a decedent’s surviving family members must begin the process of litigation within (2) two years of the discovery that one has been injured (or passed away) due to an act of medical negligence or malpractice (the use of the term “reasonable” in regard to timeframe will be further explained at length within this article).
There are multiple statutes regarding wrongful death cases and other practice areas that make up the whole of Personal Injury law, but for the purpose of this article and to be better educate our readers we will primarily focus on, and investigate specific medical malpractice statutes as they apply to Florida law.
Now, “statute of limitations”, legally, is known to mean any lawsuit filed due to the negligent behavior or reckless actions of another need be filed within a timeframe stipulated by Florida state law. Furthermore, this means any action that resulted in a victim sustaining serious bodily injury or becoming involved in an accident in which compensation is being sought through legal channels must be filed within such a time limit or the victim, no matter how deserving, risks having their entire case dismissed (thrown out) by the judge.
Discovery of Harm vs. “timely” discovery
The Statute of Limitations most often dictates that a Personal Injury lawsuit be filed within a certain timeframe after a victim is involved in an accident or sustains serious, permanent bodily injury at the hands of another for which the victim themselves was not at-fault. However, that time period in most instances does not begin (and therefore the clock does not start ticking down) until the moment the victim and their lawyer bringing litigation become aware (or should have become aware) that they sustained an injury.
The nature of the injury or permanent damage to the victim also factors in. The delay of pursuing litigation, and thusly beginning the Statute of Limitations clock is known as Discovery of Harm. If it wasn’t reasonable that a discovery of physical harm be made in a “timely” manner, the judge will take into consideration how reasonable it was for the victim to have not known their injuries were related to a previous accident or to what could be considered malpractice.
Let’s look at one example of what’s known in the Personal Injury sphere as the Discovery of Harm rule. We’ll look at this example closely, as it pertains specifically to a case of medical malpractice and must be used responsibly by a lawyer who has taken previous cases to trial:
The Discovery of Harm rule can be applied successfully in the instance of a medical malpractice claim made due to the actions of a surgeon who left a surgical tool or other medical equipment (gauze, syringe, etc.) inside the patient’s body after performing a surgical procedure. If this was not discovered until months or years later when the victim began to experience unfamiliar pain, swelling and/or sustained a life-threatening infection due to the surgeon’s negligence in leaving a foreign object in the body.
It’s this precise inability to know what lead to the pain, swelling, and/or infection until such a time as diagnostic imaging (X-ray, MRI, CT scan) was obtained for another purpose would not be considered “unreasonable” on the part of the patient who could not have readily known the pain they were experiencing was related to a surgical procedure performed an extended amount of time prior.
In this example, the statute of limitations would not have begun until the day the surgeon’s mistake was discovered through diagnostic imaging. The day of the initial surgery would not factor in after the Discovery period provided sufficient evidence of the patient being unable to reasonably know what was wrong. The delay in discovering the surgeon was the cause of the victim’s pain and suffering in the example case’s should be considered reasonable, as patients place trust in medical professionals to care for them, and it would unreasonable to assume the patient would immediately prior to or following surgery to doubt him or her.
It’s all about credibility
There are instances when the Discovery of Harm rule would not apply; this has much to do with client credibility. If a client seeking legal representation during initial consultation confided in the lawyer that they were suffering for an extended period of time from severe abdominal discomfort, but outright refused to seek further medical treatment to try to find the cause, this may not be a credible client, nor case for the lawyer to take on. We’ve continually broached the subject of being honest, credible, and forthright when speaking to a lawyer.
Without credibility, or if the lawyer deems the client to have told them one thing when another scenario occurred entirely, legal action may be barred altogether, or will simply be unsuccessful.
There are several reasons a judge may choose not to hear a case, but in the instance of medical malpractice, His or Her Honor will consider the case “unreasonable” if the victim did not attempt to seek medical attention for pain and suffering in a timely manner after realizing they were feeling unwell. Seeking medical attention for any kind of pain he or she experienced would’ve sooner lead to the discovery of a surgical error and thus, the Statute of Limitations comes into play.
Different cases, same passion for justice
It should be stressed each medical malpractice case is different, and only a board certified civil trial attorney can thoroughly understand (and then explain to the client at length) the Statute of Limitations regarding the details of a potential case. What should never change, however, is a lawyer’s passion for pursuing justice on behalf of their client. Whether a small or large amount of compensation is obtained, a board certified civil trial lawyer will always treat each and every client with the respect and compassion they deserve after becoming permanently injured by no fault of their own.